Well, Batman actually doesn't have anything to do with this post. What we're talking about here is the legal action heating up as a result of Google's bold attempt to digitize target libraries and make their searchable content available online for free. Sounds laudable. But hold on thar, Baba Looey! (Have we dated ourselves yet?) We've amassed a good bit of info on this, and will try to briefly summarize this interesting issue. (Warning: long slog ahead.) For starters, here's Google’s FAQ.
When first aired in December of 2004, the Google project seemed like a good idea, even to folks at the BBC. It also earned predictable plaudits from academia. Never having had to earn an honest dollar, many tenured profs wholly endorsed this information giveaway. Likewise, CNN/Money thought it was swell, and the New York Times chimed in with a fairly evenhanded article.
Context. The concept of Digital Libraries itself is already ancient in computer years. The taxpayers funded pilot projects that created these technologies over a decade ago, described here. One was the University of Virginia's ongoing Blake Archive, which provides beautiful scans of the poet's original hand illuminated manuscripts and pertinent literary and scientific scholarship. The Feds' idea was to make collections of ancient, rare, or difficult-to-access material available to all. But as with any good idea, someone is bound to take it too far--in this case, stretching digital libraries technologies to the point where they might endanger lit'ry Life as We Know It.
For instance, in the digital libraries of Google-World, give Google a bit of personal info and you might be able to discover a copy of the book you're looking at in a library nearby. But why the personal info? This question started nagging folks. By January 2005, the issue of Privacy Rights reared its head.
Now people are buzzing a bit. A librarian sniffs not only about privacy but about MONETIZATION!! Google might actually make money on this, which is shocking to this fellow, who cites NPR as a reliable source. ("Google could profit for its efforts. I'm shocked. Shocked!") For all this fellow’s grumping, he actually makes a couple of salient points, in that universities DO make money from unique collections, drawing famous scholars and students and increasing their research fame and therefore level of donation, so they can amortize the cost of the collections--and what will happen to this now? But on other stuff he’s typically out of touch. If you want to cut to the chase, just scroll down to his conclusion. Add the fear-factor of librarians to the civil libertarian squeamishness you just read about.
But wait, there's more! This piece comments on the issue of alleged collusion by the American Library Association (ALA) and the opposition of Europe (superpower hegemony concerns as usual) but also discusses the American Association of University Presses which is VERY concerned about copyright.
Did I say Europe? Did I say cultural hegemony? Chirac and his froggy chums got lathered up in April, fearing the McDonaldization of French kulcha, according to a Washington Post writer who seems completely ignorant of the issues involved--and relatively oblivious to the fact that this isn’t a Google story at all, but another chapter in the ongoing saga of Euro xenophobia and anti-Americanism. (If America ceased to exist, how would these clowns stay in power?) Anyhow, to concerns about information privacy, commercialization, and copyright infringement, we now add Gallic (and Germanic) fears of more American imperialism and cultural hegemony.
Even the SOUTH AFRICANS hate Google, or actually, us. You gotta love the last couple of paragraphs in this piece, which argues that Google's technology would really benefit poor people by making more info available--but we have to hate it anyway because it’s run by filthy AMERICAN swine who might make money helping the poor people!! As always, the reflexive left undercuts its own arguments by explaining why they’re stupid but why they believe in them anyway.
By, October 2005, Google has modified its position on the copyright issue for roughly a third time, and the company's views are articulated with great enthusiasm by a writer in the San Jose Mercury News. His story creatively interprets copyright law, parroting Google’s creative position. You'll find the link here, although you'll have to go through the usual, annoying registration process to get at it. The whole pitch is the same one that forced the original Napster out of the music-filching business—copyright is owned and controlled by the copyright holder, not someone else—someone else who can reinterpret the rules governing YOUR product. This writer's creative spin gained currency since his story, with and without the author's byline, has been run verbatim by the large number of newspapers across the country that increasingly buy (and never subject to scrutiny) these feeds so they don’t have to dispatch a paid staff reporter to Silicon Valley or elwewhere.
The Association of American Publishers (AAP, the commercial ones this time) begs to differ with this sunny assessment. In their counterattack—and lawsuit—they reveal some interesting info: Google wants to scan ALL the text of all the copyrighted books in the various libraries anyway. Google will choose what to excerpt and when, etc., and will OWN the digitized versions!! Of course, AAP has its own axe to grind, since they are concerned that Google will get any profits at all from their stuff. Nonetheless, this reveals a scanning system far less benign than folks have been reporting. The only irritating thing about the AAP's rational position is that it puts Wonker in the same camp as the organization's sanctimonious president, former US Rep and feminist hack Pat Schroeder.
Meanwhile, in this interesting and succinct critique, the nonprofit Association of Learned and Professional Society Publishers (ALPSP) specifically nails the point. Google is claiming they can pilfer copyrighted material under the doctrine of Fair Use combined with a clause that permits “beneficial use” of the material. ALPSP is claiming, correctly we think, that Google’s position pushes this language significantly beyond what was intended. Which gets us to—what was intended? It is clearly going to take a lawsuit to define this, and now, at least two (Authors Guild and AAP) are in play.
But leave it to a Gen Xer to justify the Google approach with a far left Napster-style defense with a bizarre logic all its own: ripping off copyrighted material is somehow protecting free speech. We include it here as an example of convoluted reasoning that riffs off the phenomenal definition of Fair Use that Google is employing to do an end run around copyright law as it has been traditionally interpreted. And by the way, tradition, aka, precedent, will be important in any eventual court case.
The Authors Guild weighed in in September with two new wrinkles: first, they regard the primary issue as PERMISSION. Google, in the Guild's position, has undertaken its activities without the author/copyright holder's permission. Sure, they offer to only excerpt books, and even then, only with permission. But then, they're still scanning and holding the (unpurchased) digital file without said permission--since it is books that the libraries themselves acquired that are being given to Google to digitize (and ultimately retain copies of) without reimbursing the authors or publishers in anyway. This might cause heretofore arrogant libraries to think twice about cooperating, and they're already starting to backpedal.
(BTW: the American Library Association is opposed to the Patriot Act insomuch as they may have to reveal the reading habits of an occasional patron to the US Government and/or law enforcement officials. However, they’re totally unconcerned about whether Google, via a cookie, gets similar information. Lefty double standards are always interesting. )
As we continue to sleuth the case, we encounter this USA/Today article, and it's a crucial one for any publisher, large, small, or even self, who wants to keep control of copyrighted, published material. To keep control of your own material, you have to OPT OUT of the Google plan. If you don’t make a peep, you’ll get digitized. (Can't you just hear Nomad in that old Star Trek classic: "Digitize all carbon units. Di-gi-tiiiiiize!) This is like the old book clubs’ “negative option” plans where, if you didn’t send their card back by x-date, you’d get the damn book and would then have to either keep it and pay for it (which they counted on), or send it back at your own expense.
Reporting from another point of view, this slightly tedious piece, which favors Google, contains legal detail focusing on Google's highly creative (and, they admit) untried interpretation of a portion of copyright law to endorse their methodology, but confirms the negative option detail. This, they correctly state, puts the onus of copyright protection on the publisher, not the “consumer,” which is essentially turning the history of American copyright law on its ear.
But leave it to an enterprising University of Michigan student who painstakingly extracted the entire Google legal agreement from a protected PDF and put it up via this site, where there are plenty of associated links. If you care to read the actual agreement—long but fairly easy to read, you’ll see soothing language that seems to respect everything. Particularly relevant is the elegant dance in Section 4, where the various clauses ultimately take copyright control from the owners and give it to Google and the librarians who will themselves determine what constitutes Fair Use (not worded that way, though, to fool you). Also, where Google has a pretty much unlimited right to re-sell this stuff without any remuneration to anyone except themselves, thus establishing a new revenue stream for themselves without compensating author or publisher.
Wonker's conclusion: at the very least, publishing companies should “opt out” of this arrangement to stop the Google juggernaut as at least two lawsuits wind their way through the system. By using an extremely liberal (both in the conventional and leftist senses) interpretation of copyright laws, Google will essentially strip copyright materials, in collusion with various libraries, to make everything or virtually everything public domain unless you opt out. This is not so different from the Napster/free speech/public's right-to-know interpretations that music companies have successfully fought against numerous times, establishing precedent, we think, in copyright law.
If I can't, say, make a bootleg copy of a U-2 disc, or download one of their songs and sell it or give it away to dozens or hundreds of my closest friends without winding up with a fine or jail time if I'm caught—well then, why can I do the same thing with a copyrighted WRITTEN work? Not logical. The original Napster was put out of business for giving copyrighted tunes away. Why is Google's high-handed approach to written material any different? Apple has made tons of money legally providing music downloads with simple and inexpensive technologies that satisfy listeners and music companies alike. What's the big issue with the written word? Amazon and Yahoo! already do a flavor of this, legally. Why is Google any different?
Ah, you say--assuming you've made it down this far--Wonker is a hypocrite. Where did he get all the links cited in this piece were it not for the freedom and ease with which you can obtain information for free on the web? Granted. But HazZzmat--indeed, all websites and blogs that respect ownership and precedent--observe the old traditions of copyright, including the use of short direct quotations (not huge ones), and accurate citations and credit, including hot links rather than pages of duplicated text. Public domain or non-copyrighted material is not at issue here. Mass copying and archiving of copyrighted materials without permission of the copyright owner no matter how much is actually reproduced--Google's apparent aim--is a different issue entirely, and Google's stated intentions, borne out in the U Mich contract language, would seem to constitute a clear challenge to the original intention of the doctrine of Fair Use.
I actually favor wider availability of hard to get stuff, copyrighted or not, if the proper protections for the author and copyright holders are dealt with in accordance with current legal precedent which gives them—not Google or anyone else—the right to final determination of how their material is used. I understand Google’s eagerness not to have to negotiate with every 5th rate poetaster who’s copyrighted something. But the fact is, that’s the way the current law works. Google's trying to get around it, and good, productive writers and publishers, who put a lot of effort into their products, are going to get ripped off if they succeed under the current arrangment.
A massive digital library system would indeed be a boon to all. But there will be nothing to put in tomorrow’s digital library system if today’s authors and publishers are systematically robbed and stop writing and producing material because they can no longer sustain a living at it. If copyright for the music industry is sacrosanct, Wonker fails to see the difference when it comes to the written word.
We seem in this country to be tilting slowly toward the Clintonista Baby Boomer ideal of situation ethics. It depends on what the definition of "is" is. In other words, if your definition of something--even if it's based on commonly accepted precedent or tradition--differs from mine, we'll use my definition. In an earlier generation, we might have called this "moving the goalposts." But today, this constant redefinition of constants is leading to a civil and cultural breakdown that may prove difficult to remedy.
We call on Google to cut the same kind of agreements that provide services to--and remunerate handsomely--companies like Apple, Amazon, and Yahoo! The service that Google proposes could be a wonderful thing. But only if it sustains a system that allows current and successive generations of "content providers" a fair opportunity to be remunerated for what they do so faithfully and so well.
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